New South Wales has a unique legal doctrine in the area of Wills and Estates known as the “Notional Estate”.
What is a notional estate claim?
A notional estate claim is a legal avenue for dependants of a deceased to seek the reacquisition of assets into the estate, which were disposed of by the deceased up to three years prior to their death. These provisions were introduced to the Succession Act 2006 (NSW) to prevent individuals from evading a family provision claim by gifting their assets prior to their death. A family provision claim is where a spouse, child or dependant of the deceased makes a claim on the estate or contests the deceased’s will.
What does it do?
The Succession Act 2006 (NSW) empowers the Court to “claw back” assets which would not ordinarily form part of the deceased Estate by notionally adding them back to the list of assets of the estate. The asset which has been “clawed back” is then available to address any family provision claim by an eligible person. To qualify for a notional estate claim, the deceased must have owned the asset within the three years prior to their death and the asset must have been given away for less than market value. The term “property” encompasses various assets but most commonly refers to real estate, life insurance benefits and superannuation.
Notional estate claims in New South Wales are a unique legal remedy to rectify situations where assets are disposed of with the express intention of circumventing the proper administration of the estate. New South Wales is the only state in Australia which has the concept of notional estates.
Get advice
Seeking legal advice early on is crucial to understanding the intricacies of notional estate claims and your eligibility to make one. If a family member or someone you are dependent upon has recently died and you are considering making a claim on their Estate, contact one of our experienced Wills and Estate solicitors today for an obligation free consultation.
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